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The Latest Legal Developments in the Medical Marijuana Debate

February 10, 2016
Controversy surrounds medical marijuana, but recent action by the federal government may open up the road to increased research.

Interview with M. Ryan Hurley, Esq

The new year has brought reasons to celebrate for medical marijuana proponents. A flurry of activity occurred at the end of 2015, including Congressional passage of the Rohrabacker-Farr amendment  (H.R. 83, Sec. 538)1 and the Drug Enforcement Agency (DEA) easing restrictions for medical marijuana research.2

According to an article in Forbes, the Rohrabacher-Farr amendment was part of a omnibus spending bill passed in December 2015.3 The amendment prevents the federal government—in this case the Justice Department and the DEA—from prosecuting medical marijuana patients and distributors who are in compliance with their state laws. Whether this amendment, which remains in effect for the fiscal year, effectively lifts the federal ban on medical marijuana is not entirely clear.

“In the near term, these changes likely mean little for the average medical marijuana patient,” said M. Ryan Hurley, Partner at Rose Law Group PC and Chairman of Rose Law Group’s Medical Marijuana Department in Scottsdale, Arizona.

“The Department of Justice [DOJ] refuses to recognize that the Rohrabacher-Farr amendment prevents them from utilizing federal funds to prosecute MM [medical marijuana] patients and providers in states where MM is legal, despite a court ruling to the contrary in California,” Mr. Hurley told Practical Pain Management.

 “The DOJ made a very tortured interpretation of the law that passed, which restricts them from using funds to prosecute. Basically, they took the position that it only limited them in filing suits against actual state actors [eg, officials that oversee programs] and not MM businesses or patients.”

The California court disagreed with DOJ’s interpretation of this law, and they were the first court to tackle this issue. “I believe DOJ is appealing [the California] ruling,” Mr. Hurley said. Other states may also be following in California’s footsteps.

Despite these developments, though, not everyone is ready to count their victories quite yet. In fact, many media outlets have been strangely silent in regard to commenting on the latest news, perhaps stemming at least in part from the fact that many of the changes may be more theoretical than practical, at least according to some experts.

While the DEA  declined to go on record with any comments, an spokesperson with the DEA Public Affairs Office said that the changes did not seem to have much significance to date, at least not from his perspective.

Nonetheless, there are new medical marijuana dispensaries cropping up in some states, and other states have medical marijuana legalization coming up for vote on upcoming ballots.

Recreational use of marijuana now has been legalized in Alaska, Colorado, Oregon, Washington State, and Washington, D.C—and in many other states, arrest for marijuana possession have fallen.4

Easing Restrictions on Marijuana Researchers

In the meantime, in another victory for medical marijuana proponents, the DEA released a press release in late December reporting that requirements imposed by the Controlled Substances Act (CSA) have been eased on Food and Drug Administration (FDA)-approved clinical trials on cannabidiol (CBD).2

The cannabis plant has somewhere around 100 different cannabinoids. CBD is a component of the marijuana plant (currently classified as a Schedule 1 drug) that is being explored by many researchers as a viable treatment for various medical conditions.

The change in the requirements removes the need for already-approved researchers to submit a formal written request to obtain additional amounts of CBD if they need it to continue their efforts.

This is particularly important because CBD has <1 % tetrahydrocannabinol (THC), which is the psychoactive ingredient in marijuana that causes some of its side effects. This is an important distinction from marijuana products sold illegally and legally that may contain much higher percentage of THC. Therefore, many experts are excited by the potential of using CBD to treat different health conditions without the accompanying psychotic effects.

In fact, a study of medical marijuana products found that many edible medical marijuana products sold in a sample of dispensaries in 3 major metropolitan areas had higher or lower amounts of active ingredients than was indicated on the product labels, leading to the potential for overdosing or underdosing patients.5 The study illustrates the need to standarize dosing and laboratory testing of medical marijuana products, as is done with pharmacologic agents, experts suggest.

 “Regarding the easing of restrictions on cannabidiol research, this is a good step but unlikely to result in much progress so long as the National Institute on Drug Abuse’s (NIDA) monopoly on cannabis research remains intact,” Mr. Hurley pointed out. He said that his concerns are around the actual availability—or lack thereof—of CBD for researchers who want to explore the medicinal benefits.

“You can only do research if you can actually get your hands on the plant material.  Right now, NIDA has a monopoly on providing that material . . .  so researchers are waiting years to get hold of it,” he said.

Looking to the Future

Despite such snags, though, Mr. Hurley does admit that things are certainly moving in the right direction.

“Progress is inevitable because of the amazing medical potential of this plant,” he stressed. “But it is very slow and really is two steps forward, one step back.”

What all this means, then, is that there is real hope for people who suffer from pain that could be eased by the medicinal properties of marijuana use, but the timeframe of when this relief may come still remains uncertain for many of them.

Last updated on: February 11, 2016
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Q&A: The Legal Implications Of Medical Marijuana